United States v. Cantu-Rios

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 17, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40649
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR CANTU-RIOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-1073
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Oscar Cantu-Rios pleaded guilty to violating 8 U.S.C.
§ 1326(a) and (b) by being found in the United States, without
permission, following his conviction of an aggravated felony and
subsequent deportation. The district court sentenced him to
serve 46 months of imprisonment and two years of supervised
release.
For the first time on appeal, Cantu-Rios argues that the
“felony” and “aggravated felony” provisions set forth in 8 U.S.C.

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No. 04-40649
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§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), because they do not require
the fact of a prior felony or aggravated felony conviction to be
charged in the indictment and proved beyond a reasonable doubt.
As Cantu-Rios concedes, his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Cantu-Rios also argues for the first time on appeal that if
Almendarez-Torres is overruled, the Supreme Court’s holding in
Blakely v. Washington, 124 S. Ct. 2531 (2004), renders
unconstitutional the district court’s calculation of his sentence
under the United States Sentencing Guidelines based on facts
relating to his prior convictions that were neither found by a
jury beyond a reasonable doubt nor admitted by him. Cantu-Rios
concedes that in addition to the obstacle posed by
Almendarez-Torres, his argument regarding the effect of Blakely
is foreclosed by United States v. Pineiro, 377 F.3d 464, 465-66
(5th Cir. 2004), petition for cert. filed (U.S. July 14, 2004)
(No. 04-5263), in which this court held that Blakely does not
extend to the United States Sentencing Guidelines.
The judgment of the district court is AFFIRMED.

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